Did you know that disclosing your invention to the public can prevent you from getting a patent? It’s true, and it’s a serious risk for Kickstarter companies.
For those of you who don’t know, Kickstarter is a global crowdfunding platform with the goal of bringing creative projects to life. If you go to Kickstarter right now, you will find 665 technology companies seeking investors for their new tech product. On Kickstarter, a company creates a mock-up of their product hoping to gain interest from the crowdsourcing community. If a Kickstarter backer takes an interest in the company’s product, the backer can invest in the product in return for a unit of the product after the company completes production using the Kickstarter funds. If the company reaches their funding goal, they will set out to build the product with the crowdsourced funds and then distribute the product to their investors.
In our experience, startups are not aware of 35 U.S.C. 102 (a) and 35 U.S.C. 102 (b)(1). To save you the hassle of deciphering 35 U.S.C. 102 (let’s call it “102”), I’ll explain. 102 is the novelty statute, and requires that an invention be new to be granted a patent. 102(a) states, in part, that an inventor who invents something new is entitled to a patent unless the invention has been disclosed to the public. Kickstarter companies are doing just that; disclosing their invention to the public.
102(b)(1), however, states an exception to that rule. Under the exception, an inventor who discloses their invention to the public less than a year before filing for patent protection shall not be barred from receiving a patent. In english this means that once you publicly disclose an invention to the public, you have one year to file for patent protection before your own disclosure will act as prior art against your patent application.
If your own public disclosure acts as prior art against your patent application, it doesn’t necessarily mean you will be barred from acquiring a patent on the invention. It does, however, mean that you will be required to distinguish between the invention you are filing a patent for and the invention you disclosed on Kickstarter over a year ago. As an example, if you have improved your invention over the last year and it has features that were not in the initial public disclosure, you might still be able to gain patent protection on the invention with those newer features. Those newer features might set your patent application apart from your previous disclosure that is now acting as prior art against you.
What would PatentDirection do?
We recommend filing for patent protection either before or immediately after disclosing your invention on any public forum, such as Kickstarter. After you have filed either a provisional or utility patent application, you can disclose your invention to the public without being concerned that you have lost any rights.
Moreover, if you file a provisional patent application or a utility application prior to your Kickstarter campaign, you can place a “patent pending” stamp on your Kickstarter product. Once a provisional or utility application has been filed, the patent application is pending and you may use “patent pending” on your product. The use of “patent pending” provides notice to any competitors that you are seeking patent protection on this invention.
In the news:
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Our inspiration for this post:
Inspiration for this post comes from Markian Sich. Markian is a Ukrainian immigrant entrepreneur who is putting together an online community for eastern european entrepreneurs. If you are an eastern european entrepreneur and would like to be put in contact with Markian, please let us know through our Contact Us page.